2019 QCCQ 16753, 2019 QCCQ 16753

Protection de la jeunesse — 195345 2019 QCCQ 16753 JO0374 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF […] Youth Division No: 525-41-034336-180 DATE : June 20, 2019 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE KAREN OHAYON, J.C.Q. ______________________________________________________________________ IN THE CASE OF: X Born […], 2015 Director of Youth Protection A Applicant A Father B Mother ______________________________________________________________________ JUDGMENT (Section 38, Y.P.A.) ______________________________________________________________________ WARNING: Within the framework of the Youth Protection Act, no person may publish or broadcast information allowing a child or the child's parents to be identified.

Any person who contravenes this provision commits an offence and is liable to a fine (Y.P.A. sections 11.2.2 and 135). [ 1 ] In the context of a joint hearing, the Director of Youth Protection (the Director) is asking the Court to declare that the security and the development of the children are endangered. [ 2 ] The applicant submits that the youngest child, Y, has suffered traumatic injuries as a result of what is commonly referred to as “shaken baby syndrome”, while in the parents’ care.

In the Director’s opinion, the parents are unable to provide a credible alternate explanation for the injuries, thereby leading to a conclusion of physical abuse on the child. [ 3 ] The Director argues that this same factual basis justifies a declaration of endangerment based on a serious risk of physical abuse for the two older girls. [ 4 ] All three children have been provisionally placed within the extended family, since August 2018.

Following a thorough assessment of the parents’ personal situation and considering their cooperation over the course of the past year, the Director proposes to progressively reintegrate the girls over the next two months with a social follow-up over the next year. Regarding Y, the Director is asking to extend his placement for a further nine months with progressive reintegration beginning after six months. [ 5 ] The parents contest the state of endangerment although they offer no direct evidence of an alternative scenario at the hearing.

In the event of a declaration of endangerment, they express through their lawyer a consent to the measures proposed. [ 6 ] The lawyer for the children supports the Director’s position. The State of Endangerment (

i) Introduction : [ 7 ] The Director retained a signalement alleging physical abuse for Y and a risk of physical abuse for his two older sisters on July 31, 2018. The context can be summarized as follows: [ 8 ] On the morning of July 31, 2018, Y became suddenly unresponsive after a period of relentless crying. The parents contacted emergency services and he was immediately transported to hospital. [ 9 ] Over the course of the medical intervention that followed, numerous tests and observations led to the conclusion that the child

had suffered an acute subdural hematoma (bleeding around the brain) as well as extensive retinal haemorrhaging (bleeding in the retina) [1] . (ii) The parents’ theory regarding the cause of Y’s injuries : [ 10 ] Although the child was in the parents’ care during the period in question, neither parent acknowledges having any first-hand knowledge pertaining to the cause of Y’s injuries. During the assessment process, the father explained to the worker that his five year old daughter, Z, confessed to playing a game called “melon-head” with her brother.

According to the father, the game [2] is played as follows: [ 11 ] Two people face each other; the first holds the other’s arms while the second places his hands of the first’s person’s head. The second person then rotates the first person’s head in a wide, circular motion. The parents speculate that this game may have caused the injuries in question. [ 12 ] At the hearing however, the parents’ fail to present any direct evidence in support of their theory, despite having had the opportunity to do so.

Given the option to call Z to the stand, they refuse to do so, knowing that her extrajudicial statements contained in the court report cannot be considered for the truth of their contents. [ 13 ] Two other minor incidents are referred to by the parents’ in the course of their cross-examination of the medical expert called to testify. These suggestions are summarily excluded by the pediatrician however and no further evidence on the matter is presented. [ 14 ] Consequently, there is no alternate theory in evidence.

On the other hand, the nature and the gravity of the injuries are not in debate. (iii) The medical evidence of traumatic injury : [ 15 ] The medical team conducted numerous tests that failed to identify any medical condition that could reasonably explain the injuries in question. Once medical causes were ruled out, the team turned its attention to traumatic causes. The file was reviewed in its entirety by Dr. Gillian Morantz, an expert in the field of paediatric medicine and in

interpretation of childhood injuries. [ 16 ] According to her testimony, the child’s injuries are compatible with a severe impact such as that sustained in a motor vehicle accident. In this case however, the absence of any fractures, coupled with the lack of a compatible explanation involving a severe impact, leads to the conclusion of “ Abusive head trauma ”.

She defines this medical term as shaking with impact, meaning violent and repetitive. [ 17 ] She details certain physical symptoms observed upon the child’s arrival at the hospital that are, in her opinion, compatible with this diagnosis, namely: - A possible seizure; - Head lag; - Petichiae; - A low level of consciousness. [ 18 ] The acuteness of the symptoms leads her to the conclusion that the traumatic event occurred in the hours before his transport to hospital.

Confronted with the parents’ theory that the child may have been injured during a game of “melon head” with his five year old sister, the expert excludes this possibility. [ 19 ] In her opinion, the game, as demonstrated by the father, creates a rotational force rather than the acceleration/deceleration required to induce the child’s injuries. Moreover, she considers it unlikely that a five year old would be able to generate the force required to produce injuries of that nature. [ 20 ] Currently, the child is progressing well and is reaching all his milestones.

There is no obvious impact on his development at this time but future difficulties cannot be excluded. (iv) The social worker’s assessment : [ 21 ] With respect to the family situation, the social worker gathered the following information during the assessment process: - the parents’ are the primary caregivers to their children; - they have both expressed feeling overwhelmed by their parental responsibilities; - the mother has acknowledged symptoms indicating a possibility of post-partum depression; [ 22 ] Both parents have presented as emotionally shaken by the events in question.

The mother was unable to provide an explanation for her son’s injuries whereas the father suggested different possibilities, all of which have since been ruled out by medical opinion. Analysis and Conclusion [ 23 ] The nature of the injuries sustained by the child is not in dispute. In the absence of any evidence to the contrary, the medical opinion presented by the Director remains uncontested.

[ 24 ] Dr. Morantz’s opinion is based on a particular expertise in the matter of childhood injuries. Her testimony is supported by studies conducted in the field and widely accepted by the medical community. Her conclusion of abusive head trauma follows a thorough study of the child’s medical file as well as consultations with all of the medical professionals involved in his treatment.

There is no suggestion of fault in her methodology and her opinion is compatible with the evidence as a whole. [ 25 ] Although the parents have speculated as to an alternate cause of the injuries, they have failed to present any direct, supporting evidence. Moreover, they were given the opportunity to test their theory during the cross-examination of Dr. Morantz, with no success. [ 26 ] The courts have consistently ruled that the Director is not required to establish which of the parents are responsible for injuries sustained by a child in a case such as this. Identifying the abuser is not the objective.

It is sufficient to prove that the child was in the parents’ care when the injury was sustained. [ 27 ] In this case, there is no other conclusion to be drawn from the evidence than that the child was violently and repetitively shaken while in the parents’ care. This conclusion is sufficient to establish physical abuse on Y as well as a serious risk of physical abuse on the two girls. The Measures [ 28 ] Since the initial signalement, the mother has agreed to a psychiatric assessment [3] and both parents have participated in a psychological parental capacity assessment [4] .

The results can be summarized as follows: (

i) The mother : [ 29 ] The psychiatric assessment highlights anxiety, depressive mood, irritability, anger and fatigue.

The psychiatrist concludes that the mother suffers from the Dysthymic disorder, panic disorder with mild agoraphobic elements and a personality disorder with narcissistic and paranoid aspects. [ 30 ] Recommendations include psychological testing, discontinuance of Paxil previously prescribed at a walk in clinic and psychotherapy by way of a supportive and cognitive approach. [ 31 ] The psychological parental capacity assessment conducted subsequently indicates that the mother reports high levels of stress and anxiety. [ 32 ] Psychometric testing scores evoke a moderate range of depression, a strong need to be seen in a favourable light and the likelihood that criticism provokes anxiety and depression. [ 33 ] The psychologist theorizes that the mother is likely experiencing a generalized anxiety disorder.

The author recommends short- term supportive therapy as well as a follow-up with her general practitioner for depressive symptomatology. [ 34 ] Her study of the mother’s complaints and reported behaviours lead her to conclude that she is at risk for major depression, generalized anxiety disorder and/or post-traumatic stress disorder. Moreover, the following personality types emerge; dependant personality disorder and avoidant personality style. (ii) The father : [ 35 ] The father reports recent anxiety attacks although he appears to have no prior history.

His current state appears to be linked to the current youth protection intervention. [ 36 ] Personality testing indicates: - Pronounced distrust; - Defensive attitude; - Distorted perception of others to the effect that they are malevolent in nature; - Personality disturbance that manifests itself by highly problematic interpersonal exchanges. [ 37 ] The psychologist concludes that the father likely suffers from: - Paranoid personality disorder; - Unspecified personality disorder; - Schizoid personality style; [ 38 ] The interaction between the parents and the children as observed by the author of the parental capacity assessment is positive.

The report suggests teaching the parents how to develop healthier lifestyles, better self-care and coping skills. (iii) The Director’s intervention : [ 39 ] The parents have been working with an educator in order to learn how to better regulate their emotions and cope with anxiety. [ 40 ] Visits with the children have been regular and are going well. Routine and structure are being emphasised by the educator and the parents are learning to work together cohesively. Healthier lifestyle choices are being implemented, including nutritional habits. The

parents have also focused on improving their home environment, removing clutter and remodelling. [ 41 ] The parents are also working on healthier communication with the children in order to promote their self-esteem and better manage disciplinary issues. They have proven to be receptive, engaged and insightful. [ 42 ] The parents report significant change in their emotional wellbeing. They express feeling happier and seem to have a more positive outlook on their future. Conclusion [ 43 ] The bond between the children and their parents is undeniable. The objective of reintegration is legitimate and realistic.

That being said, the Director’s consistent monitoring throughout the transition is an essential component to the intervention plan that seeks to ensure the safety of these young children. The parents are encouraged to maintain their cooperation with the services proposed and to do so with sincerity and unequivocal transparency. [ 44 ] Any feelings of anxiety, fatigue, irritability or depression must be discussed with the social worker in order to better assess the sufficiency of the services in place. Respite, when needed, should be an available option.

Techniques taught to manage anger and regulate emotions must be implemented.

The potentially devastating consequences that can accompany a moment of anger are not to be minimized. [ 45 ] Keeping in mind the evidence as a whole including the parents’ commitment to the intervention plan, the Court concludes that the Director’s recommendations serve the children’s best interests. [ 46 ] FOR THESE REASONS, [ 47 ] THE COURT: [ 48 ] GRANTS the motions; [ 49 ] DECLARES that the security and development of the children are endangered as a result of serious risk of physical abuse; [ 50 ] ORDERS that the children remain entrusted to the foster home of C for a period of two months and TAKES JUDICIAL NOTICE that a gradual reintegration process to the parents’ care will commence immediately; [ 51 ] ORDERS that during the duration of their foster care placement, the frequency and modality of contacts between the parents and the children be determined by the Director; [ 52 ] STRONGLY RECOMMENDS that the mother continue to seek medical support for her mental health issues; [ 53 ] TAKING JUDICIAL NOTICE of her consent to do so, RECOMMENDS that the mother engage in individual therapeutic support; [ 54 ] RECOMMENDS that a community based organization, particularly a CLSC, offer the mother therapeutic counselling services as quickly as possible, taking into consideration the best interest of the children; [ 55 ] TAKES JUDICIAL NOTICE that the Director will assist the mother in securing therapeutic services as quickly as possible; [ 56 ] AUTHORIZES the Director to share and obtain information with the professionals working with the family; [ 57 ] ORDERS that a person working for a Child and Youth Protection Centre provide aid, counsel and assistance to the children and their family, including the services of an educator for as long as deemed necessary to be provided to the family; [ 58 ] ENTRUSTS the situation of the children, Z and X, to the Director of Youth Protection of the CIUSSS A who shall then see that the measures are carried out; [ 59 ] THE WHOLE for a period of one year.

SIGNED IN TOWN A On June 27, 2019 __________________________________ KAREN OHAYON, J.C.Q. Me Christine Waldvogel Attorney for the D.Y.P. Me François Pelletier

Attorney for the child Me Karine Dallaire Attorney for the mother Me Christophe Lafontant Attorney for the father Dates of hearing: December 18, 2018; January 18, February 4 and June 20, 2019. KO/lf